Mens Rea

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The elements of a crime: actus reus and mens rea
Introduction
The traditional starting point for the study of criminal law is the constituents of a criminal offence: actus reus (often referred to as the prohibited conduct, but more accurately described as the external elements of the offence) and mens rea (often referred to as the mental element, but more accurately described as the fault element). Commentators and students alike want to find consistency and certainty in the application and development of the criminal law, and most criminal law textbooks dealing with the elements of crimes try to state principles that the student should see consistently applied in later chapters covering specific offences. The main problem is that the offences have developed in a piecemeal fashion, exhibiting no underlying rationale or common approach. Thus in examining actus reus, the student might be covering an offence defined in modern terms, e.g., by the Criminal Damage Act 1971, or in obscure outdated language, e.g., in the Offences Against the Person Act 1861, or the definition of actus reus may arise from the common law, perhaps amended or augmented by statute, e.g., murder. Similarly, when we examine our approach to mens rea, we can see little common ground. If the offence requires the prosecution to prove intention, this must generally be left to the jury without detailed guidance from the trial judge (R v Moloney [1985] 1 All ER 1025); but if recklessness is the issue, a direction spelling out to the jury what they must find may be required. If one looks at the development of the concept of recklessness one can see that, prior to the decision of the House of Lords in R v G [2003] 4 All ER 765, a case involving criminal damage would have involved a court in trying to assess whether the defendant was reckless according to the definition laid down in Metropolitan Police Commissioner v Caldwell [1981] 1 All ER 961. Following the abandonment of ‘Caldwell recklessness’ in R v G [2003] 4 All ER 765, the issue has been simplified so that a court now has to concentrate on whether or not the defendant was aware of the risk in question and if so, whether or not, in the circumstances known to the defendant, it was unreasonable for him to take the risk.

The elements of a crime: actus reus and mens rea

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If dishonesty is the mens rea (see Theft Acts 1968–1996) the jury must consider two specific questions (would ordinary people consider D dishonest?; if so, did D realize that they would?); but these are questions of fact for them to resolve (R v Ghosh [1982] 2 All ER 689). In other words, there are three different approaches in establishing the mens rea for different offences. A search for consistency is therefore a futile exercise! Students should therefore be aware that studying the chapters on actus reus and mens rea can produce a distorted impression of the criminal law. One is dealing with concepts in isolation and could form the impression that these general principles are consistently applied. One particular criticism is that the criminal law is not consistent in applying objective or subjective tests for liability. Objective tests consider what the reasonable person would have foreseen. Subjective tests judge the defendant on the facts as he honestly believed them to be. There appears to be an absence of any underlying rationale and the offences develop independently of each other. One can understand why Sir Henry Brooke (former head of the Law Commission) and many others wish for codification of some, if not all, of the criminal law (see [1995] Crim LR 911—‘The Law Commission and Criminal Law Reform’). Even established concepts that have been applied by the courts for many years, may suddenly come under attack and be interpreted differently by the judiciary. Thus the House of Lords in Attorney-General’s Reference (No. 3 of 1994) [1997] 3 All ER 936, reversed the Court of Appeal decision ([1996] 2 WLR 412), holding that the...
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